Bright Harry v. Kcg Americas LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2020
• Docket: 19-15013
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIGHT HARRY, No. 19-15013

Plaintiff-Appellant, D.C. No. 4:17-cv-02385-HSG

v. MEMORANDUM* KCG AMERICAS LLC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Bright Harry appeals pro se from the district court’s judgment dismissing for

lack of standing his action alleging claims under the Commodity Exchange Act, 7

U.S.C. §§ 1 et seq. (“CEA”) and state law. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Fleck and Assocs., Inc. v. City of Phoenix, 471 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1100, 1103 (9th Cir. 2006). We affirm.

The district court properly dismissed Harry’s action for lack of standing

because Harry failed to allege he suffered any injury. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (holding that to demonstrate standing a plaintiff

must allege he has suffered an “injury in fact” that is “concrete and

particularized”); see also Davis v. Yageo Corp., 481 F.3d 661, 678 (9th Cir. 2007)

(“[W]hether or not [plaintiff] was the real-party-in-interest, it does not have

standing, and it cannot cure its standing problem through an invocation of Fed. R.

Civ. P. 17(a).”).

The district court did not abuse its discretion by denying Harry’s motion to

consolidate. See Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008)

(setting forth the standard of review); Huene v. United States, 743 F.2d 703, 704

(9th Cir. 1984) (setting forth the factors a district court should weigh in a motion

for consolidation).

The district court did not abuse its discretion by denying Harry’s motion to

stay the case because Harry failed to demonstrate he would experience any

inequity absent the stay. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1105, 1110

(9th Cir. 2005) (setting forth standard of review and factors that a district court

must weigh when granting or denying a stay).

We do not consider matters not specifically and distinctly raised and argued

2 19-15013 in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We do not consider documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

Harry’s request to file a supplemental opening brief (Docket Entry No. 45) is

granted. The supplemental brief has been filed at Docket Entry No. 45.

AFFIRMED.

3 19-15013 FILED Harry v. KCG Americas LLC, et al., No. 19-15013 MAY 20 2020 MOLLY C. DWYER, CLERK BERZON, Circuit Judge, concurring: U.S. COURT OF APPEALS

I would hold that Harry has standing to pursue this case, but that the statute

of limitations had run before suit was filed.

4 19-15013